Opinion
January 26, 1998
Appeal from the the Supreme Court, Richmond County (Mastro, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, the appellants' motion is granted, and the complaint is dismissed insofar as asserted against the appellants; and it is further,
Ordered that, upon searching the record, the motion of the defendant New York City Transit Authority for summary judgment dismissing the complaint and all cross claims insofar as asserted against it is granted, and the complaint and all cross claims are dismissed insofar as asserted against it.
We agree with the appellants that the plaintiff failed to establish a prima facie case that she sustained a serious injury within the meaning of Insurance Law § 5102 (d) ( see, Beckett v. Conte, 176 A.D.2d 774; O'Neill v. Rogers, 163 A.D.2d 466; Philpotts v. Petrovic, 160 A.D.2d 856; Covington v. Cinnirella, 146 A.D.2d 565). Therefore, the court should have granted the appellants' motion for summary judgment dismissing the complaint insofar as asserted against them on that basis. Furthermore, inasmuch as the plaintiff has failed to demonstrate that she sustained a serious injury, we search the record to grant the motion for summary judgment of the defendant New York City Transit Authority and dismiss the complaint and any cross claims insofar as asserted against it, notwithstanding its failure to appeal ( see, Dunham v. Hilco Constr. Co., 89 N.Y.2d 425; Soto v. City of New York, 244 A.D.2d 544; Zimmerman v. Pokart, 242 A.D.2d 202; Sagevick v. Sanchez, 228 A.D.2d 488).
Miller, J.P., Ritter, Sullivan, Santucci and McGinity, JJ., concur.